Dewan Chand Sharma @APPELLANT@Hash Paramjeet Singh RESPONDENT

In this petition filed under Section 561-A of the Code of Criminal Procedure, the petitioner inter alia seeks quashment of orders dated 12.05.2016 and 23.02.2018 passed by the learned City Judge, Jammu in a complaint titled Dewan Chand Sharma vs Paramjeet Singh under Section 138 of Negotiable Instrument Act.

Brief facts of the case are that the learned City Judge, Jammu vide order dated 25.04.2016, after perusing the complaint and evidence affidavit, issued notice to the respondent; that on 12-05-2016, the respondent appeared for the first time before the learned City Judge, Jammu and his statement under Section 242 Cr.PC was recorded on the same day wherein he has clearly admitted the issuance of cheque by him and also receipt of legal notice. The respondent stated that he wanted to make the payment to the petitioner in pursuance of the cheque. He further stated that he would pay the installment of Rs.20,000/-per month initially and thereafter a monthly installment of Rs.30,000/-and shall liquidate the remaining installments on a monthly installment of Rs.40,000/- ; that thereafter the respondent remained absent and on 15-12-2016, respondent had come to the court and made a statement that he had deposited an amount of Rs.10,000/- in the account of the petitioner through on line transaction in pursuance of his pending installment; that on 02.02.2017, the respondent made the payment of Rs.20,000/-in pursuance of the installment settled by him and further under took to pay Rs.30,000/- next month, but on the next date he remained absent and non bailable warrants were issued against him. Thereafter, the respondent remained absent for next two dates and on 03-06-2017, he appeared and paid an amount of Rs.10,000/- to the petitioner through his counsel and sought time for making the payment of balance amount; that on 23.02.2018, the court asked the respondent to make the payment, where upon the respondent stated that he would make the payment of Rs.20,000/-on that day and requested to pass over the file for some time, but at 2.00 p.m when again the file was taken up, respondent took U-turn and stated that he owes nothing to the petitioner and there is no liability against him to pay any amount to the petitioner and hence the learned trial court directed the petitioner to adduce the evidence; that since the learned trial court on one hand reflected in its order dated 23-02-2018 that the respondent had admitted issuance of cheque in his statement under Section 242 Cr.P.C. and had also made certain payments in pursuance of his statement for paying the cheque amount in installments, but when on 23-02-2018, the respondent after seeking time of two hours for bringing the payment, made a submission before the trial court that he owed no liability and the learned trial court directed the petitioner to adduce the evidence.

Petitioner thereafter filed revision petition against order dated 23.02.2018 before 1st additional Sessions Judge, Jammu which was dismissed on 10.7.2018 on the ground that order impugned was interlocutory and revision was not maintainable.

Petitioner, feeling aggrieved of aforesaid orders passed by the trial court, has prayed for quashing the same inter alia on the following grounds:

a) That the orders impugned dated 12.05.2016 and 23.02.2018 passed by the learned trial court are contrary to the facts of the case and law on the point. The same deserves to be quashed.

b) That since the respondent in his statement under Section 242 Cr. PC has categorically admitted the issuance of cheque by him and had also requested the Hon'ble Court for making the payment of the cheque amount in installments. The petitioner who is an aged person of 80 years, in view of his old age and ill health agreed to the request of the respondent and even agreed for the installments as per the request made by the respondent. The respondent has also paid an amount of Rs.40,000/-till date in pursuance of his statement made under Section 242 Cr. PC. Once the respondent has admitted the payment of cheque amount and has also paid the part of it, he cannot be allowed to resile from his statement and take U turn as has been reflected in the order impugned. The trial court instead of adopting the coercive measure to get the payment from the respondent, rather asked the petitioner to adduce the evidence at this belated stage which makes the order legally not tenable hence the order impugned deserves to be set aside.

c) That since the respondent has already admitted the payment and once he has admitted his guilt in the statement under Section 242 Cr. PC and also further sought time for making the payment and further has also made part payment in pursuance of his statement under Section 242 Cr.PC, the learned trail court could not have asked the petitioner to lead evidence, hence the order impugned deserves to be set aside.

d) That the petitioner is suffering from various ailments and has become bed ridden now and has already been cheated by the respondent, in view of his ill health and old age, the petitioner had agreed to get his payment in installments after the respondent had given the statement under Section 242 Cr.PC. But now the perusal of the interim orders of the trial court would reveal the conduct of the respondent who firstly remained absent for maximum dates of hearing after the statement under Section 242 Cr.PC deliberately and thereafter has now come up with all together different stand i.e resiling from his earlier statement made under Section 242 Cr.PC, hence the orders impugned deserve to be quashed.

e) That the learned 1st Addl. Sessions Judge, Jammu vide order dated 10.07.2018 had dismissed the criminal revision petition on the ground that it is an interlocutory order, whereas the Hon'ble Court has not appreciated the fact that since vide said order the right of the petitioner has been decided hence it being the intermediate order, hence the revision petition is maintainable.

f) That the petitioner reserves his right to make further additional or alternate submissions at the time of hearing.

The English translated version of order dated 12.05.2016, which is in Urdu, passed by the trial court, reads as under;

"Counsel for the complainant present. Accused present. Accused is ready to furnish personal bond and surety bond to the tune of Rs.10,000/-. Time has been sought on behalf of the accused to furnish surety bond. However, accused has been directed to furnish personal bond which has been furnished. The statement of accused u/s 242 Cr.P.C has been recorded and it is to be annexed in the file. File shall come up for evidence of complainant on 06.06.2016."

The order dated 23.02.2018 impugned in this petition reads as under:

"L/C for complainant is present. Accused along with counsel is present. Statement of accused in terms of Section 242 CrPC has already been recorded vide order dated 12.05.2016 wherein the accused has admitted the liability of cheque amount and stated that he will pay the cheque amount of Rs.7,00,000/- by way of installments of Rs.20,000/-, Rs.30,000/- and Rs.40,000/- and pursuant thereto accused has made payment of Rs.10,000/- only on 03.06.2017. Today also accused has stated that he will make the payment of Rs.20,000/- and requested to pass over the file and when file was again taken up at 2.p.m, accused just took U turn and stated that he owes nothing to complainant and there is no liability against him to pay any amount to the complainant.

In the given circumstances, let complainant be directed to adduce evidence to prove his claim against the accused.

Put up on 13.03.2018."

The complaint under section 138 of N.I Act is summoning trial. The CHAPTER-XX of Cr.P.C. deals with procedure for trial of summons cases. Relevant sections of this Chapter are reproduced

herein below:-

"241. Procedure in summons cases.- The following procedure shall be observed by Magistrates in the trial of summons-cases.

Substance of accusation to be stated.-When the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him, and he shall be asked if he has any cause to show why he should not be convicted; but it shall not be necessary to frame a formal charge.

Conviction on admission of truth of accusation.- If the accused admits that he has committed the offence of which he is accused, his admission shall be recorded as nearly as possible in the words used by him; and if he shows no sufficient cause why he should not be convicted, the Magistrate may convict him accordingly.

*[243-A. Conviction on plea of guilty in absence of accused in petty cases.- (l) Where a summons has been issued under Section 205-A and the accused-desires to plead guilty to the charge without appearing before the Magistrate, he shall transmit to the Magistrate, by post or by messenger, a letter, containing his plea and also the amount of the fine specified in the summons.

(2) The Magistrate may, in his discretion, convict the accused in his absence, on his plea of guilty and sentence him to pay the fine specified in the summons, and the amount transmitted by the accused shall be adjusted towards that fine, or where a pleader authorized by the accused in this behalf pleads guilty on behalf of the accused, the Magistrate shall record the plea as nearly as possible in the words used by the pleader and may, in his discretion, convict the accused on such plea and sentence him as aforesaid.]

Procedure when no such admission is made.- (l) If the Magistrate does not convict the accused under the preceding Section or if the accused does not make such admission, the Magistrate shall proceed to hear the complainant (if any), and take all such evidence as may be produced in support of the prosecution except such evidence which the accused may admit in an application made in this behalf, and also to hear the accused and take all such evidence as he produces in his defence:

Provided that the Magistrate shall not be bound to hear any person as complainant in any case in which the complaint has been made by a Court.

(2) The Magistrate may, if he thinks fit, on the application of the complainant or accused, issue a summons to any witness directing him to attend or to produce any document or other thing.

(3) The Magistrate may, before summoning any witness on such application, require that his reasonable expenses, incurred in attending for the purposes of the trial, be deposited in Court.

Acquittal.- (l) If the Magistrate upon taking the evidence referred to in Section 244 and such further evidence (if any) as he may, of his own motion, cause to be produced, and (if he thinks fit) examining the accused, finds the accused not guilty, he shall record an order of acquittal.

(2) Sentence.- Where the Magistrate does not proceed in accordance with the provisions of Section 349 or Section 562, he shall, if he finds the accused guilty, pass sentence upon him according to law."

Section 242 Cr.P.C. provides that it is not mandatory to frame a charge but the section does not dispense with the explanation of the particulars of the offence when accused is brought or appears before the Court. This is done to make the accused cognizant of the allegations made against him. If in case he is unaware of the particulars then this will not vitiate the trial and it will not lead to the prejudice with the accused as this irregularity is remediable under Cr.P.C. Under section 242 courts shall ask the accused whether the accused pleads guilty, and section 243 needs to comply for conviction on such plea of guilty. Section 243 provides conviction on the plea of guilty. Section 242 provides plea of guilty in general and section 243-A provides plea of guilty in case of petty cases. In case accused pleads guilty, the answer is in affirmative, then court will record the plea in the exact words of the accused on the basis of which accused can be convicted by the court. If not in affirmative then the court needs to proceed further with Section 244 Cr.P.C. After recording the evidence under Section 244 Cr.P.C., the magistrate will acquit the accused, if he finds the accused not guilty. If the accused is guilty then Magistrate shall proceed according to Section 349 or 562, and sentence him according to the law.

In the present case as is evident from statement of respondent recorded under section 242 Cr.P.C., he has admitted his guilt, but prayed for giving the cheque amount in instalment; even he has paid some instalments. So trial court was wrong in directing the petitioner/complainant to produce the evidence in support of charges. Evidence can only be directed to be produced in terms of section 244 Cr.P.C. when accused does not admit the accusation or his guilt.

In view of above discussion, the orders impugned of trial court are set aside. Trial court is directed to proceed according to law in terms of section 243 Cr.P.C. Copy of this order be sent to concerned court for compliance.